EAD stamp needed?

[rebeccajo 14]

Texanadian -

Read item 2 again. Carefully.

"We issue this type of card to people lawfully admitted to the United States on a temporary basis who have DHS authorization to work."

Your K1 visa is non-immigrant. You are considered to be here on a temporary basis.

Also as a non-immigrant, any work authorization you may possess has a limited time frame. Your JFK stamp is good till your I94 expires. Your EAD (issued when you file for adjustment of status) is good for one year.

Thus - the wording on your Social Security card.

Greencard holders are considered to be here permanently and their work authorization is good as long as they possess the greencard - ie as long as they are in good status with the law. So their SS cards are not marked.

And again remember - the language you are reading about SS cards does not apply just to aliens admitted through family. There are many visas out there, including employment based ones.

Edited February 17, 2008 by rebeccajo

[Johnnie Oz 0]

Question for the people who got the JFK stamp. When

you went for the SS card, did you get the regular SS

card or the "valid only with DHS authorization" card?

The exact wording: "Valid for Work Only with DHS

authorization". I have it right in front of me

Folks, I do not post to be "irksome" but

because I sincerely believe that is possible for VJers

- not to speak of REAL lawyers or judges even - to

have different opinions.

When I post something, I try to be specific even I

tend to be wordy. All I expect is for those points to

be addressed rather than be taken off on some other

tangent, eg it won't be worth the employer's time to

hire you anyway etc etc. There are tons of jobs out

there, tons of employers, there is certainly no one

way to look at this.

Some could care less if you work just for a little

while. Others may not even have a problem with "gap

situation" and let you return once that is resolved. They may very well be used to renewing H-1bs, waiting for lost EADs etc etc. The Employer's Handbook details how to "re-verify/update" when "rehiring" people, surely a nod to those who had to stop working due to a gap...

Regarding the meaning of "discrimination" under employment law, let's leave that for now. Suffice it to say, expiry dates of work authorization "may" constitute such discrimination according to the Handbook.

As for the

I-9

(the form) and

the

Handbook for Employers (M-274) language, this is

what we are discussing.

Anyone, please tell us what item on List A is the equivalent

of an unexpired foreign passport with an unexpired

I-94, K1 class of admission, with or without the JFK

"employment authorized" (exact wording) stamp on the

back of the I-94? Again, it's right in front of me...

If, as stated categorically, item 5 on that list does NOT

apply to K1s with I-94s then what?

Items 1-4 do not either. I think arguing that the

JFK EA stamp is an EAD

with photo, item 4 (Form I-766, I-688, I-688A,

I-688B) is even more of a stretch than saying k1s fall under Item 5.

My point was: either item 5 includes us OR we are not

allowed to work till we have the EAD. The only other option is using items

from BOTH Lists B and C. So perhaps item 1 or 2 on List B,

and then item 7 on List C. But as we know getting a

state ID card or DL can be troublesome in some states...this seems hard.

The language in the Handbook does indeed lend itself

to Rebeccajo's interpretation. Absolutely. See page 4,

I have merely been pointing out that the language on the I-9 leaves more room for interpretation...

The more I look at this, the more it seems that K1s are some kind of overlooked anomaly. The old I-9 wording was perhaps better for us: "unexpired foreign passport with an attached Form I–94 indicating unexpired employment authorization’’. no "the employer" etc.

So while the new wording ofr Item 5 first gives us hope by referring to "incident to status", it then proceeds to shoot it down by mentioning "specific employers" in the handbook (though not on the form itself). It is not crystal clear here, and the fact that is does not mention specific classes of admissions leaves some room for finagling... Still, how hard would it be to list those visa classes? (yes, there are quite a few but it would leave little room for doubt).

In my next post, I'll refer back to the plain legalese of the Federal Code of Regulations. Perhaps that will settle it...

[Johnnie Oz 0]

From the online version of the Federal Code of Regulations (which stillrefers to the INS in some paragraphs and USCIS/DHS in others)

Title 8, § 274a.2 Verification of employment eligibility

The List A items are nearly exactly the same as on the I-9 and in the Handbook, however Item 5 is different:

(v) (A)

"In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, an unexpired foreign passport with an Arrival-Departure Record, Form I–94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I–94."

So yes, "specific employer" is mentioned here. A shame that this is not stated so clearly on the I-9.

Still, if you look at the case of F-1 students (to a lesser degree J-1 scholars) pp. 25, 40-42 in the Employer's Handbook we see that these two must produce additional documents in order to meet List A, item 5 requirements (forms I-20 for F-1s and DS-2019 for J-1s)

Thus at first glance, esp using just the I-9, they would seem to be excluded since their I-94s do not have enough information on them. Yet, to paraphrase the Handbook's language, if "combined" with the I-20/DS-2019, such documentation together with the unexpired foreign passport and valid/unexpired I-94 meets LIST A requirements.

So does such a "combination" exist for K1s? Is it the passport, I-94, plus JFK style EA stamp? Why not? Well, it is not mentioned ANYWHERE in official government sources. In contrast to the case of students who may confuse employers...

well, K1s sure confuse them as well...

in the next post, i'll conclude by quoting s'more from the Code, trying to show our status after we apply for AOS.

Edited February 18, 2008 by Johnnie Oz

[Johnnie Oz 0]

whoah. Here I was thinking that the old I-9 was more favorably inclined to K1s...

But reading this USCIS bulletin from 2005, I have to wonder. It explicitly states that I-9 instructions and Handbooks do NOT reflect the various changes in the bulletin.

Thus, for our purposes: it says "In addition, the acceptability of an unexpired foreign passport with a Form I-94 indicating unexpired work authorization (List A #4; my note: now #5) was modified. Such a combination of documents is only acceptable when the individual is authorized to work for a specific employer incident to his or her status."

Man, if they were as clear on the I-9 itself (and parts of the Handbook) as in these bulletins or in the Federal Code, I would be out of this meaningless job...

[Johnnie Oz 0]

For those of you still with me....

§ 274a.12 Classes of aliens authorized to accept employment

According to the Code, there are three classes of aliens authorized to accept employment.

(a) "Aliens authorized employment incident to status". This includes e.g. both permanent residents AND K1s. Our inclusion here with GC holders says a lot. That were it not for bureaucratic delays, the gap problem would not exist.

(B) "Aliens authorized for employment with a specific employer incident to status". This includes H-1bs. No EAD can be applied for.

© "Aliens who must apply for employment authorization". This includes pending AOS folks. The language here almost implies that AOSers "must apply" for an EAD. That not we have a choice whether to do so or not, while waiting for our GCs.

The difference between (a) and © is bit of unclear since (a) "must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien's authorization to work in the United States"

while ©, as the headline implies, MUST apply for employment authorization ???

I guess you can argue that a K1 arriving at JFK "applied" for an EA stamp (even if I received one w/o asking) and thus meets the requirements of proving eligibility under (a)(6). We should thus meet the requirements of the I-9, even if our documentation combo is not specifically mentioned on List A or in the Employer's Handbook.

Summary:

K1s during the first 90 days are work authorized but must be able to prove it.

Most argue that an I-94 with JFK EA stamp constitutes the kind of USCIS document ( the wording is " a document evidencing such employment authorization ) needed to prove this. Others might argue that a I-94 even without this stamp, but stating admission in K1 status suffices. Both I-94s are USCIS/DHS documents that were "applied" for when we sought to gain entry to the U.S.

I am still a little confused re: K3s (can't get SSNs but according to (a)(9) are authorized to work incident to status too)

Then as pending AOSers, we are no longer work authorized until USCIS approves our EAD application. Fine.

The original intent must have been to let K1s work from the beginning (realizing that we are planning to stay in the U.S.) and then get an EAD quickly as long we marry and there are no red flags in our AOS application. Backlogs have unintentionally resulted in the infamous gap situation.

over and out.

---

PS. Anyone read someone into the Code's description of ©(9)s?

"An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245©(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence."

[TinTin and Samby 11]

Johnny Oz,

My compliments to you for your digging and persistance. Until you found the U.S. DEPARTMENT OF HOMELAND SECURITY - U.S. CITIZENSHIP AND IMMIGRATION SERVICES - Employer Information Bulletin 102, "The Form I-9 Process In A Nutshell" - October 7, 2005, I just wasn't swallowing the arguements because none seemed to be able to refute, what seems to be perfectly clear and unabiguous language in the I-9 form/handbook under Part 8, List A, lettter e.

Of course, as a result of your excellent work, we now know that that item's language is incorrect as it has been modified and specifically interpreted by the memo you uncovered. The interpretation in the memo you unearthed clearly and unambiguously shows that what Rebeccajo and others have stated, that it only applies to Work Visas for a Specific Employer (ie L1, et al) ...something that, while I value their opinion, I always prefer to see in black and white source documentation.

This Topic (edited) should be a sticky posting or abstracted to the K1 Guides for all! Nice Job, Johnny Oz!

Warm Regards,

Samby

[Johnnie Oz 0]

Johnny Oz,

My compliments to you for your digging and persistance. Until you found the U.S. DEPARTMENT OF HOMELAND SECURITY - U.S. CITIZENSHIP AND IMMIGRATION SERVICES - Employer Information Bulletin 102, "The Form I-9 Process In A Nutshell" - October 7, 2005, I just wasn't swallowing the arguements because none seemed to be able to refute, what seems to be perfectly clear and unabiguous language in the I-9 form/handbook under Part 8, List A, lettter e.

Of course, as a result of your excellent work, we now know that that item's language is incorrect as it has been modified and specifically interpreted by the memo you uncovered. The interpretation in the memo you unearthed clearly and unambiguously shows that what Rebeccajo and others have stated, that it only applies to Work Visas for a Specific Employer (ie L1, et al) ...something that, while I value their opinion, I always prefer to see in black and white source documentation.

This Topic (edited) should be a sticky posting or abstracted to the K1 Guides for all! Nice Job, Johnny Oz!

Warm Regards,

Samby

Thanks! I remember when I found that bulletin/memo..seeing the light...

We obviously think alike. Great minds....

PS: The US Department of Labor STILL has the 1991 version of the Employer handbook on its website! It's from DOJ and INS, pre-DHS - no wonder, it's more lucid...

p. 12 (14 of pdf) Q6 shows that having applied for an EAD and producing the receipt was enough back then - if we could show the docuement within 90 days. This option is no longer available (receipts are now only good for renewals/lost EADs) why oh why?

p. 22 (24) List A has the foreign passport and I-94, BUT it says to go to p. 23 for SPECIFIC info

p. 23 (25) "Arrival-departure record issued by INS to nonimmigrant aliens. An individual in possession of the departure

portion of this document may only be employed if the document bears an "employment authorization" stamp or employment incident to the nonimmigrant classification is authorized with a specific employer (i.e. A-1, A-2, A-3,

C-2, C-3, E-1, E-2, G-1, G-2, G-3, G-4, G-5, H-1A, H-1B, H-2A, H-2B, H-3, I, L-1, O-1, O-2, P-1, P-2, P-3, Q,

NATO 1-7 and TC). The expiration date is noted on the Form I-94."

Crystal...

The new handbook, esp when read in the spirit of the 2005 Bulletin 102 and the 2007 press release, would thus seem to exclude K1s from working. We are not in possession of the right documents. I still think it takes creative thinking to interpret current language as pertaining to K1s with EA stamp, esp if you simultaneously argue that the same language actually applies to non-immigrants authorized to work for specific employers.

I used to argue that "the employer" could apply to our situation (k1 with valid EA stamp) since with that, we are authorized to work for any employer...not so sure now.

Anyway, the DHS is the agency that gave us the darn stamp, so it's their problem. BUT there is STILL NO language explicitly prohibiting us from working. Amazing that this common scenario has not been addressed, it was in 1991.

Edited April 1, 2008 by Johnnie Oz

[I'm Gone 60]

I am still a little confused re: K3s (can't get SSNs but according to (a)(9) are authorized to work incident to status too)

Since, you have done all this research, I'm surprised that you didn't fine something right under your nose that I have posted here I didn't know how many times.

At one time SSA also required a K-1 to either have an EAD card or work authorization stamp, but at that time INS was having trouble getting EAD cards out to K-1s under the A6 catagory before the 90 day K-1 period had expired. So SSA wrote the infamous EM-00154 that is now part of POMS section RM 00203.500 C1. Nothing in the law changed regarding K-1 work authorization, just SSA changed their procedure to allow K-1s to use the I-94. K-3s have no A6 option or worry about status expiring before the EAD card is received.

Not sure what you are trying to prove, but airport EAD stamp or A6 EAD card you can work as a K-1 for the 90 day period K-1 status is valid, then legally you are to stop working until obtain other valid work authorization.

[coyote 3]

Well, actually we had two immigration lawyers say he was okay to work based on his K-1 status, but the HR department was iffy because of the I-9 requirements, which they were right to be as the HR department was correct. (The I-9 details the requirements for employees that employers must check for. See the requirements here: http://www.uscis.gov/files/form/i-9.pdf) Since one of the sections on the I-9 is "An alien permitted to work until ___ date", you need to have an expiration date, which you will not have unless you have the stamp or the EAD card.

It's seriously such a headache, but we did go through it and it's not worth it to try to fight any employer or HR department about the really dumb practices of USCIS. Just go through JFK and if that's not an option, file for AOS and EAD as soon as possible, then get a SS card without the restrictions printed on them.

I've been researching this, and what I've been told by USCIS is that I765 work authorization is required (thus K1 is essentially useless when it comes to work) and EAD stamp is not sufficient. However, I called JFK twice and the Customs folks there are adamant that they give the stamp and it is work authorization. Then a Customs pr guy in DC said they don't give the stamp anymore, and we need to get permission from USCIS.

My fear is that someone will face deportation if found working illegally here. Is this not a rational fear? I found a statement on this site by Gonzales saying he doesn't think K1 should allow people to work but it does seem as though the agencies are at odds over this. And agencies even seem to be at odds internally!

As everyone else seems to be....are there actually people out there working with the EAD stamp from JFK?

[cellarlily 0]

I've been researching this, and what I've been told by USCIS is that I765 work authorization is required (thus K1 is essentially useless when it comes to work) and EAD stamp is not sufficient. However, I called JFK twice and the Customs folks there are adamant that they give the stamp and it is work authorization. Then a Customs pr guy in DC said they don't give the stamp anymore, and we need to get permission from USCIS.

My fear is that someone will face deportation if found working illegally here. Is this not a rational fear? I found a statement on this site by Gonzales saying he doesn't think K1 should allow people to work but it does seem as though the agencies are at odds over this. And agencies even seem to be at odds internally!

As everyone else seems to be....are there actually people out there working with the EAD stamp from JFK?

Yes. The thing with the stamp is it's only valid for the time that your 1-94 is valid (90 days). Since it will take time for someone to get married, file for AOS and EAD, the stamp will likely expire before they receive the EAD card. Because of that, some people don't bother to work until they are able to file for EAD (so they don't have that weird period where they are not authorized). The EAD stamp (which is given only at JFK and some Canadian/US POEs...don't know which) IS authorization to work, but I don't believe an employer has to hire a person with a stamp because of their very temporary employment status.

I'm not sure if someone adjusting their status would be deported if found working illegally. The general consensus is that any illegal employment is forgiven at the time of AOS approval.